This essay uses the framework of the affirmative action litigation to introduce and preliminarily explore the concept of “partial recusal” at the Court. Part I briefly introduces judicial recusal, including the unique features of recusal at the Supreme Court. Part II addresses the idea of partial recusal, which has been generally undertheorized and effectively overlooked with respect to the justices’ recusal practices. It then distinguishes between two types of partial recusal—horizontal and vertical—and makes a case for why each could be useful for the Court.

The challenges facing agency adjudication are a microcosm of those facing modern American government. Limited resources, shifting priorities, and overt politicization all contribute to perhaps the gravest threat to the longevity of our public institutions—diminished confidence in the integrity of agency action.

Recusal—the removal of an adjudicator from a particular case—is a time-honored way of safeguarding the integrity of adjudicative proceedings, from traditional judicial proceedings to agency adjudications. Yet unlike judicial proceedings, there is no set standard for determining when an agency adjudicator must recuse.

Agencies have been left to design their own recusal regimes for the dual purpose of promoting fairness to litigants and, just as importantly, public confidence in their proceedings. Until now, the nature and scope of agency recusal practices were largely a mystery. This Article, which is derived substantially from a recent report for the Administrative Conference of the United States, is the first to develop a comprehensive accounting and taxonomy of agency recusal standards. As such, it is also the first to offer a normative analysis of administrative recusal across all federal agencies. The result is a series of recommendations for how
agencies can best develop their recusal practices to combat the ongoing cynicism and suspicion that threatens the efficacy of American government.

There is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the integrity of all manner of quasi-judicial activity, including agency adjudication. Yet the existing landscape of agency recusal standards exhibits gaps in coverage that potentially threaten the efficacy of, and public confidence in, that adjudication. This Article, which is based on a report for the Administrative Conference of the United States, is the first to identify the full range of recusal standards that impact agency adjudicators and to evaluate their effectiveness in light of recusal’s dual purposes of promoting fairness to litigants and public confidence in the integrity of the proceedings. It concludes that the best way to fill the ethical gap in agency adjudication is through agency-specific recusal regulations that seek to preserve both the reliability and effectiveness of agency adjudication.